One-year suspension ordered by Justice Cowin on November 10, 2008, with an effective date of December 10, 2008 and a proviso that reinstatement is conditioned upon the lawyer obtaining a report from the Board of Bar Examiners that he possesses the character, fitness and qualifications for admission to practice law in the Commonwealth of Massachusetts.1

BOARD MEMORANDUM

Bar counsel has appealed from a hearing committee’s recommendation that the respondent, Grigory I. Voykhansky, be suspended from the practice of law for one year for misrepresenting that he had received a college diploma as part of his application for admission to the bar. Bar counsel asks that we recommend suspension for a year and a day, a term long enough to require the respondent to undergo a hearing to prove his entitlement to reinstatement. See S.J.C. Rule 4:01, § 18(2)(c). The respondent asks us to adopt the hearing committee’s recommendation. Oral argument having been waived by the parties, see Board Rule 3.50(b), the board considered the matter on the papers on August 11 and September 8, 2008. For the reasons discussed below, we adopt and incorporate by reference the hearing committee’s findings of fact, conclusions of law, and recommendation that the respondent be suspended for a year. We add only that, as a condition to his reinstatement, the respondent obtain from the Board of Bar Examiners (BBE) a report that he possesses “the character, fitness, and qualifications for admission to practice.”

Findings of Fact and Conclusions of Law

The respondent was born and raised in the former Soviet Union before immigrating to the United States in 1988. He worked as a licensed insurance broker in Kansas and later in Massachusetts.

In 1999, he applied for admission to the Massachusetts School of Law. Not wanting, as he testified, to “allocate 4 or 5 years of [his] life” to undergraduate education, he paid a friend and fellow Russian émigré to obtain a fraudulent diploma purporting to award him a bachelor’s degree from Gorky State Pedagogical Institute in Minsk. He was admitted to the law school and graduated in 2002. In a subsequent application for admission to the Massachusetts bar, he intentionally misrepresented that he had obtained a bachelor’s degree from Gorky State.

In fact, the only post-primary education the respondent had completed was at the Leningrad Technical School of Refrigeration, which he admits is the equivalent of no more that two years of college level credit. He later studied at the Moscow Technical Institute of the Ministry of Civil Services and took some college courses at the University of Kansas, but he did not obtain an undergraduate degree.

He was admitted to the bar in December 2002 and has practiced in Massachusetts since then. Around 2006, he terminated his relationship with two business associates who were involved in fraudulent medical claims. The associates assaulted him, and the respondent reported them to the US Attorney. One of the associates was the émigré who had sold him the fraudulent diploma used to obtain his law license. At some risk to himself and his legal career, the respondent cooperated with the government and agreed to testify against his former associates. Anticipating the likely course of cross-examination, he revealed the fraudulent diploma to the federal prosecutor and disclosed it to the court during his direct examination. The trial judge told him he would report him to the Board of Bar Overseers if the respondent did not do so himself. The respondent self-reported.

The hearing committee ruled that the respondent had violated Mass. R. Prof. C. 8.1 by making misrepresentations on his bar application. It rejected charges that this conduct also violated Mass. R. Prof. C. 8.4(c) and (h) because, by their terms, those rules apply to conduct by a lawyer and he was not a lawyer at the time he applied for admission to the bar. Cf. Matter of Donovan, 13 Mass. Att’y Disc. R. 142, 145 (1997) (in accepting the board’s proposed sanction, the single justice found “some validity” in the board’s decision to find mitigation in the presence of a novel legal question whether rules prohibiting conduct by “a lawyer” should be applied to actions taking place before his admission).

After finding no aggravating factors, the hearing committee made a number of findings in mitigation of the misconduct:

The respondent completed his education despite an eye disease and a later injury that left him blind in one eye;

He was not able to obtain documentation of all his education before emigrating because of prejudice against ethnic Jews and because émigrés were required to reimburse the state for the cost of their education before the state would provide diplomas;

He was not able to obtain transcripts for courses he took at the University of Kansas because he had cosigned an educational loan his ex-wife had not paid;

He participated in the formation of Women of the World, Inc., an organization that helped women committed to democracy to obtain political office in Russia;

He volunteered in community work and homeless shelters, and provided pro bono legal services to his church and his pastor; and

He performed volunteer work for The Bridge House, which assists recently released prison inmates.

While acknowledging that these circumstances are “typical” mitigation normally given little weight, see Matter of Alter, 389 Mass. 153, 156, 3 Mass. Att’y Disc. R. 3, 6-7 (1983), the committee considered their totality to constitute something more than typical mitigation. The Committee found the respondent’s misrepresentation to be less egregious than those that masked the serious ethical lapses that led to a two-year suspension in Matter of Moore, 442, Mass. 285, 20 Mass. Att’y Disc. R. 400 (2004). The committee recommended a one-year suspension. The committee saw no need to require the respondent to petition for reinstatement because, in their view, he presently possesses the qualifications for membership and has demonstrated “considerable evidence of his current good character.”

Discussion

Having raised no objections to the hearing committee’s findings of fact and conclusions of law, the parties differ only on disposition. Bar counsel asks that we add a day to the term of suspension so that the respondent would have to undergo a reinstatement hearing, at which he would be required, as she puts it in her brief, “to establish his eligibility for admission to the Bar of this Commonwealth.” Not requiring such a hearing, bar counsel argues, would reward the respondent for lying about his education on his bar application by allowing him to evade the admission requirements. The respondent contends that the board lacks authority to pass on his credentials for admission to the bar, which is the province of the Court upon a report by the BBE. Neither party has it quite right.

The respondent’s argument proves too much: if the BBE alone has authority to inquire into his moral fitness and legal learning, the board could never inquire of a reinstatement petitioner about his or her moral character or learning in the law. Yet that is precisely what the reinstatement rule commands the board to do in such a hearing. See S.J.C. Rule 4:01, § 18(5) (on reinstatement the lawyer “shall have the burden of demonstrating that he or she has the moral qualifications, competency and learning in law required for admission to practice law in this Commonwealth, and that his or her resumption of the practice of law will not be detrimental to the integrity and standing of the bar, the administration of justice, or to the public interest”). Accepting the respondent’s argument thus would deny the board’s clear authority to inquire into his moral fitness and legal learning solely because they happen also to be matters the BBE determines with regard to applicants for original admission. The respondent’s argument reads § 18(5) right out of Rule 4:01 and would deny the board authority to hold a reinstatement hearing for any lawyer disciplined for lying on his bar application.

Bar counsel’s argument, on the other hand, would require the board to delve into questions concerning the possible equivalence of the respondent’s education – clearly an inquiry foreign to the board’s province and falling squarely within the expertise of the BBE. We are not equipped to determine whether the respondent’s educational background, from Leningrad to Kansas, is the rough equivalent of a bachelor’s degree from an American college or university.2

Courts in other states sometimes revoke law licenses that were obtained through fraud, thus leaving it to the lawyer to seek fresh admission on a proper footing. See, e.g., People v. Culpepper, 645 P.2d 5 (Colo. 1982) (falsified undergraduate transcript; admission "voided"); In re Gouiran, 613 A.2d 479 (N.J. 1992) (revoking license for misrepresentation regarding discipline as real estate broker; revocation stayed to permit re-application). That disposition, however, is not listed among the available sanctions the Court has empowered us to recommend. See S.J.C. Rule 4:01, § 4 (“Discipline of lawyers may be (a) by disbarment, resignation . . . , or suspension by this court; (b) by public reprimand by the Board; or (c) by admonition by the bar counsel.”). We are also concerned that allowing the respondent to be reinstated automatically after a year’s suspension would reward him for his fraudulent actions, as it remains an open and (given our lack of expertise in the matter) a difficult question whether his educational background satisfies the requirements for admission to the bar.

We believe the most practical resolution would be to impose the one-year suspension recommended by the hearing committee and to charge the respondent with the duty, before reinstatement, to obtain a report from the BBE that he has the qualifications for admission. As the agency with the authority and expertise to determine whether his educational background is sufficient for admission, the BBE could then advise the Court whether he possesses “the character, fitness, and qualifications for admission to practice.”

Conclusion

For the foregoing reasons, we adopt and incorporate by reference the hearing committee’s findings of fact and conclusions of law, but modify its proposed disposition. An Information shall be filed with the Supreme Judicial Court recommending that the respondent, Grigory I. Voykhnasky, be suspended from the practice of law for one year and that his reinstatement be conditioned on his obtaining a report from the Board of Bar Examiners that he possesses the character, fitness, and qualifications for admission to practice law in the Commonwealth.

FOOTNOTES:

1 The complete Order of the Court is available by contacting the Clerk of the Supreme Judicial Court for Suffolk County.

2 Nor do we have any way of knowing whether the Massachusetts School of Law would rescind or expunge the respondent’s law degree if apprised of the fraudulent basis on which he gained admission to the school – or how the BBE might react to such action.